Policy Discourses on Women's Land Rights in Sub–Saharan Africa: The Implications of the Re–turn to the Customary

This article examines some contemporary policy discourses on land tenure reform in sub–Saharan Africa and their implications for women's interests in land. It demonstrates an emerging consensus among a range of influential policy institutions, lawyers and academics about the potential of so–called customary systems of land tenure to meet the needs of all land users and claimants. This consensus, which has arisen out of critiques of past attempts at land titling and registration, particularly in Kenya, is rooted in modernizing discourses and/or evolutionary theories of land tenure and embraces particular and contested understandings of customary law and legal pluralism. It has also fed into a wide–ranging critique of the failures of the post–colonial state in Africa, which has been important in the current retreat of the state under structural adjustment programmes. African women lawyers, a minority dissenting voice, are much more equivocal about trusting the customary, preferring instead to look to the State for laws to protect women's interests. We agree that there are considerable problems with so–called customary systems of land tenure and administration for achieving gender justice with respect to women's land claims. Insufficient attention is being paid to power relations in the countryside and their implications for social groups, such as women, who are not well positioned and represented in local level power structures. But considerable changes to political and legal practices and cultures will be needed before African states can begin to deliver gender justice with respect to land.     

Revisiting the World Bank's land law reform agenda in Africa: The promise and perils of customary practices

This paper revisits the World Bank's land law reform agenda in Africa by focusing on two central issues: (1) land law reform as a tool for resolving land conflicts, and (2) the role of land law reform in addressing gender inequalities. While the Bank's recent land report provides insights for improving land governance in Africa, it fails to acknowledge the exploitative and contentious politics that often characterize customary land tenure systems, and the local power dynamics that undermine the ability of marginalized groups to secure land rights. Using insights from recent fieldwork, the paper analyses the links between land law reform and conflict in Ghana, and the gendered dynamics of reforming land governance in Tanzania. These “crucial cases” illustrate how land law reform can provoke conflicts over land and threaten the rights of vulnerable populations (e.g. migrants and women) when customary practices are uncritically endorsed as a means of improving land governance. As such, the paper concludes with a series of recommendations on how to navigate the promise and perils of customary practices in the governance of land.     

Registration of private interests in land in a community lands policy setting: An exploratory study in Meru district,Tanzania

Current Tanzanian land law offers registration of private interests in land in the form of Certificates of Customary Rights of Occupancy (CCROs) within a broader community lands approach. We conducted qualitative research on the issuance of CCROs along a mountain slope transect in Meru district in northeast Tanzania. This area features intensified smallholder agriculture that evolutionary theory suggests is well adapted for registration of private interests in land. It also features strong customary authorities of the sort that legal pluralism theory suggests may lead to property relations that are not singular and evolving but multiple and co-existing. We found that tenure was highly individualized and local demand for CCROs was expressed in a context of both agricultural intensification and nascent urbanisation. Nevertheless, due to high cost and coordination constraints, this demand did not deliver widespread registration. While CCROs were perceived as useful to resolve land conflicts and put up as collateral for loans, they were not essential as a variety of alternative approaches were in place. In this forum shopping, plurality was not in itself a problem and individuals increasingly chose quasi-formal paper authorisations over customary rituals. Based on our findings, we recommend that land administration systems more explicitly build on existing quasi-formal practice, and that community lands approaches include a diversity of national programmes tailored to different local community circumstances.     

Systems approach to pro-poor land reforms: A concept paper

There has been renewed interest in the academic discourse on land reforms due to recent high profile works suggesting a positive correlation between reforms and poverty reduction. Land is held under different tenure regimes in different regions, countries and communities. These are often in the form of community tenure, state tenure, individual tenure or a mixture of two or three of them. However, land reformers are in constant debate as to which of the three offers the most appropriate pathway to poverty reduction. The policy outcomes of such debates have been to superimpose one tenure option over the other in differing situations. This article conceptualises a metaphorical approach to land reforms grounded on general systems theory. It advocates for contextualised methodological rigour and an approach to land reforms reliant on the influencing variables of alternative land tenure regimes as opposed to wanton superimposition of one form of tenure over the other.     

Natural Resource Contests and Precolonial Institutions in Papua New Guinea

This paper investigates the role that precolonial institutions play in relation to postcolonial natural resource ownership contests. Papua New Guinea provides a unique case study, as it is recorded as having the most decentralized precolonial political institutions of any postcolonial state. After an examination of its precolonial institutions, colonial land policy and three case studies, it is concluded that persistent highly decentralized customary political units, coupled with customary notions of inalienability of land and overlaid with a state property rights regime, lead to resource contests. It is concluded that resource ownership contests can have serious adverse consequences for resource management and that they are not easily overcome.     

Registration and release of customary-land for private enterprise: Lessons from Papua New Guinea

Land held under customary tenure has proven difficult to register and release for private enterprise globally. This is because the costs of developing secure rights to land held under communal ownership is high given that such ownership rules out a ‘pay-to-use-the-property’ system while punitive negotiation and policing costs make a ‘pay-him-not-to-use-the-property’ system ineffective (Demsetz, 1967, p. 355). Here I document reforms to institutions governing access to land held under customary title in Papua New Guinea that has imbedded collective ownership whilst allowing for a ‘pay-to-use-the-land’ for private enterprise. Reforms put in place over the past decade have allowed for voluntary incorporation of landowning clans, the registration of their land, and the leasing of this land for up to 99 years. The ongoing reforms provide lessons both for Papua New Guinea and for others wrestling with the challenges of making available land held by customary groups for individual enterprise.     

Lineage and land reforms in Malawi: Do matrilineal and patrilineal landholding systems represent a problem for land reforms in Malawi?

Based on government statistics and interviews with villagers across Malawi this article argues that customary matrilineal and patrilineal land tenure systems serve to weaken security of land tenure for some family members as well as obstructing the creation of gender-neutral inheritance of lands. Data from the National Census of Agriculture and Livestock 2007and the 2008 Population and Housing Census are used to characterize marriage systems and landholding patterns of local communities. Marriage systems correspond to customary land-tenure patterns of matrilineal or patrilineal cultures. The differences between the two ways of land holding represent a challenge for land reforms aimed at unifying rules for land tenure and land devolution. Drawing on an analogy of the resilience of the patrilineal land holding system in Norway, we argue that it will be difficult to remove the preferential rights of lineage members directly. We recommend that, instead of creating a unified national system, existing land rights should be formally recognized and circumscribed by fair procedures. A well-designed landholding system should aim to ease the transitions of diverse customary tenure systems towards the requirements of a modern large-scale society.     

Market-based grazing land transfers and customary institutions in the management of rangelands: Two case studies on the Qinghai-Tibetan Plateau

Beginning in the early 1990’s, grazing lands once held in common were contracted to individual households in the rangeland regions of China. The resulting fragmentation of rangelands has led to ecological and social problems. As China seeks to address intractable poverty and rangeland degradation, attention has turned to rental, or transfer, of contracted grazing land as a market-based approach to re-aggregating grazing land into larger units that support economies of scale. However, given that many pastoral regions still maintain community customary institutions, what the relationship between market mechanisms and local customary institutions should be in rangeland management needs further analysis. This paper applies comparative case studies of two types of relationships between market mechanisms and customary institutions: (1) market mechanisms that replace customary institutions in the case of Axi village, and (2) market mechanisms that are embedded within customary institutions in Xiareer village. This allows contrast of the impacts of differing approaches on livelihoods, livestock production, and wealth differentiation among pastoral households. We found that there is a higher level of livestock mortality, lower livestock productivity, and higher livestock production cost in Axi Village compared to Xiareer Village. In addition, household asset levels are higher and there is less income differentiation in Xiareer Village. It is concluded that embedding market mechanisms within customary institutions has had notable benefits for the herders of Xiareer Village, because it is a better fit to the coupled pastoral social-ecological system. Based on these findings, we argue that in pastoral communities where the rangeland transfer system for contracted grazing land has not yet been implemented, it is critical to reconsider China’s current policy approach to pay greater attention to the innovative management systems being developed in local regions. Instead of considering market-based approaches as oppositional to traditional institutions, options that derive from the interaction of market-based and customary institutions should be considered.     

Evolution of land tenure institutions and development of agroforestry: evidence from customary land areas of Sumatra

It is widely believed that land tenure insecurity under a customary tenure system leads to a socially inefficient resource allocation. This article demonstrates that the practice of granting secure individual ownership to tree planters spurs earlier tree planting, which is inefficient from the private point of view but could be efficient from the viewpoint of the global environment. Regression analysis, based on primary data collected in Sumatra, indicates that an expected increase in tenure security in fact led to early tree planting. It is also found that customary land tenure institutions have been evolving towards greater tenure security responding to increasing scarcity of land.     

Land Registration and Gender Equality in Ethiopia: How State–Society Relations Influence the Enforcement of Institutional Change

In recent years, the Ethiopian government has introduced reforms to promote gender equality in land rights, including legislative changes and a land registration programme that requires the names of both husbands and wives on certificates. This paper examines implementation of these reforms through a case‐based approach that links national policy processes to analysis of two village‐level case studies, based on fieldwork conducted in 2009–10. In both cases, government initiatives do appear to have enhanced women's land rights to a certain degree. However, the causal process involved is considerably more complex than the direct link between titling and women's land rights that is assumed in much of the existing literature. The cases suggest that government initiatives are contingent upon state–society relations, and that change to informal institutions and power relations within society can constitute an important complement to land registration.     

Land tenure and farm management efficiency: the case of paddy and cinnamon production in customary land areas of Sumatra

This study attempts to identify the impacts of land tenure institutions on the efficiency of farm management based on a case study of lowland paddy (rice) and upland cinnamon production in customary land areas of Sumatra. While the traditional joint-family ownership system is found to exist in paddy land, more individualised ownership systems are widely observed in upland areas. Yet, we found no statistical evidence that residual profit per unit of land is affected by land tenure institutions in either the lowlands or uplands, indicating that the prevailing land tenure institutions are equally conducive to efficient farm management.     

Cutting the web of interests: Pitfalls of formalizing property rights

Property rights to land can be thought of as a web of interests, with many different parties having a right to use, regulate, or manage the resource, which may be based on a range of customary institutions or local norms as well as state law. These interests often play a critical role in livelihoods, social relations, and ecological functions. The formalization of property rights has historically led to a cutting of this web, creating more exclusive forms of rights over the resource. Drawing from case studies in Kenya the paper emphasizes the risk of excluding legitimate claimants in formalization processes that focus on individual titling. By collapsing all rights within individuals, such programs have negated the distinct multiple claims by women, youths, and seasonal users, among others. We examine ways in which formalization processes can secure diverse claims, and highlight the need for a better understanding of the social and ecological implications of existing land tenure before they are undermined by formalization.     

Institutions for improving access to land for settler-housing: Evidence from Papua New Guinea

This paper provides household level evidence of the institutions that are developing to provide security of access to land for housing within the settlements of Port Moresby, the capital of Papua New Guinea. Data collected from a survey of 441 randomly selected households shows that households organise around regional, family, and professional cleavages to provide security to person and property. Further, some households pay rent to landlords and keep evidence of the above to legitimise their claims to the land settled upon. In one case, a community has formed an organisation to mediate between the settlers and the customary landowning group. The above is evidence of the maturation of institutions to provide tenure security. It also provides the opportunity for policymakers to adopt and then adapt (migrate) the existing institutions into the formal system as part of ongoing reforms.     

Land and Social Change in a Tanzanian Village 1: Kinyanambo, 1920s–1990

This article (in two parts) traces the historical development of land tenure in Kinyanambo village, Mufindi District, Tanzania. It suggests a gradual commoditization of land and the evolution of a predominantly individualized land market, processes influenced by the long-term commoditization of agriculture and social reproduction more generally. Local land tenure practices evolved more or less independently of national land tenure policy until 1974, when villagization altered the evolutionary path of local land tenure, marking a fundamental turning point in people's understandings of their land rights. Together with the simultaneous establishment of Mafinga town, it created conditions for the rapid and more spatially concentrated growth of the local population, for urbanization, and for associated changes in livelihoods, land use, and relations between people and land. As a result, and following the economic reforms of the current period of structural adjustment and liberalization, by 2000 Kinyanambo had a deep-rooted, widespread and socially legitimate market in land.     

Capitalization by formalization? – Challenging the current paradigm of land reforms

Most of the land reforms in developing countries in recent decades follow a blueprint that is based on the property rights theory. This blueprint was supported by Western government-backed development aid institutions and the World Bank and intends to achieve a capitalization of property rights on land by formalization and individualization. Its supporters expect higher efficiency of the land markets and higher tenure security. The focus of the article is not so much on the formalization efforts themselves, but on the capitalization of the use rights. In contrast to the opinions of the property rights theorists, it is argued that this approach leads to a decoupling of benefits and costs of land use, which causes external costs, encourages rent-seeking behaviour and weakens the state. The central statement of supporters of privatization, namely that this strategy supports the efficiency of land markets, is rejected. Instead, the approach gives way to economically efficient and powerful interests at the expense of other groups and a diversity of living forms. Some evidence is provided using the examples of Germany (as a Western “blueprint”) and Cambodia (as a land in reform process). The plea is to couple the benefits and costs of land use and thus to eliminate external effects. This coupling can be achieved by a “decapitalization” of the use right on land.     

Capitalization by formalization? – Challenging the current paradigm of land reforms

Most of the land reforms in developing countries in recent decades follow a blueprint that is based on the property rights theory. This blueprint was supported by Western government-backed development aid institutions and the World Bank and intends to achieve a capitalization of property rights on land by formalization and individualization. Its supporters expect higher efficiency of the land markets and higher tenure security. The focus of the article is not so much on the formalization efforts themselves, but on the capitalization of the use rights. In contrast to the opinions of the property rights theorists, it is argued that this approach leads to a decoupling of benefits and costs of land use, which causes external costs, encourages rent-seeking behaviour and weakens the state. The central statement of supporters of privatization, namely that this strategy supports the efficiency of land markets, is rejected. Instead, the approach gives way to economically efficient and powerful interests at the expense of other groups and a diversity of living forms. Some evidence is provided using the examples of Germany (as a Western “blueprint”) and Cambodia (as a land in reform process). The plea is to couple the benefits and costs of land use and thus to eliminate external effects. This coupling can be achieved by a “decapitalization” of the use right on land.     

Customary vs Private Property Rights? Dynamics and Trajectories of Vernacular Land Markets in Sub‐Saharan Africa

Contemporary discourse on land in Africa is polarized between advocates of tenure reform through state registration of individual titles to land and others who claim that customary or 'communal' tenure is the only check against landlessness among the poor in the African countryside, and that 'pro-poor' land policy should therefore strengthen customary rights to land. This paper draws on a growing body of evidence on the emergence of vernacular rural land sales and rental markets to question assumptions that underlie the non-market 'ideal type' communal tenure model that has historically dominated policy thinking in Africa, and continues to be shared by both sides of the current land tenure reform debate. The paper argues that recognition of the specific characteristics of 'vernacular land markets'– commoditized transfers of land within the framework of customary tenure – is essential if state land policies are to succeed in promoting the interests of the poor.     

2019年土地科学研究重点进展评述及2020年展望——土地管理分报告

研究目的：归纳分析2019年国内外土地管理领域研究进展，展望研究趋势。研究方法：文献研究法。研究结果：2019年，国内土地管理问题研究涉及基本理论、制度变迁及土地管理体制、制度、政策和法律等方面，关注实践中的新情况、新问题；国外土地管理研究偏向关注土地问题尖锐的发展中国家和第三世界国家；土地管理体制、制度、法律、权籍与利用问题是国内外共性研究内容。研究结论：2019年土地管理研究紧扣理论与实践问题，在探索土地管理体制与实施机制方面取得了进展，但仍需加强方法创新与土地管理科学规律凝练；2020年将重点关注土地治理体系改善、土地计划管理方式改革、农村土地制度改革、城乡土地统一市场、国家重大区域战略实施中的土地管理问题、自然资源资产产权制度改革、自然资源统一确权登记、耕地保护转型、自然保护地管理、国土空间规划管理、土地市场管理与产业用地政策创新等议题。     

SOME CURRENT POLICY ISSUES*

A number of current policy issues are discussed which illustrate serious confusion and economic illiteracy in the minds of many influential farm leaders. The issues discussed are: the cost-price squeeze in agriculture; the embargo on the export of merino rams; promotion of farm products; land policy; and tax concessions for agriculture. In some cases policies are followed which run counter to both farmer and national interests. Along with farm management extension, there is a growing need for agricultural policy extension.     

On the need for national land administration infrastructures

Many nations lack a coherent national approach to land administration. Instead, land information and processes are frequently disaggregated across states, provinces, cantons, counties, or municipalities. This is particularly the case in federated countries. The growing body of land administration theory often assumes or prescribes the need for national systems; however, the justification for this approach requires further explanation. Without justification, nations that maintain disaggregated systems lack the impetus to unlock the opportunities veiled within their disparate land administration systems. Moreover, a nation's ability to respond effectively to emerging national and global-scale issues such as climate-change is greatly impeded. This paper aims to explain the need for national land administration infrastructures. Qualitative case studies of the Australian context and the method of triangulation inform the justification. The research reveals most drivers can be classified into six overarching subsets: adherence to international standards by national governments, better federal or central governance, improved shared governance, scale of economies for lower levels of government, opportunities and savings for business, and social inclusion for citizens. Unfortunately, specific drivers are found to be complex and changeable, as political, scientific and environmental debates raise policy issues: there is no single solution. As an alternative, nations must seize on the specific drivers relevant to their context. They must employ them to transform disparate land administration systems into multi-purpose national land administration infrastructures that deliver benefits to all stakeholder groups.